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What’s the verdict on our new supreme court, asks Afua Hirsch, who is worried about the lack of media interest during its first six months compared with its US counterpart. Our supreme court justices are not celebrities and cannot be conveniently pigeon-holed by the media in the same way as in the US, given that they are not political appointees. But I would imagine they much prefer that arrangement.
Indeed, at a recent lecture by the excellent US supreme court justice Ruth Ginsburg attended by many of our own justices, you could almost hear them wince as she graphically described the rehearsals for her politically charged Senate confirmation hearings. Our justices are known for the content of their judgments alone and not for their personalities – which is surely the right way round. If that somehow lessens their media profile, then it is a price well worth paying.
In fact, our justices have also been keen to make themselves more media accessible it would seem. The president of the court (Lord Phillips) recently gave an informal and candid interview on YouTube about a number of thorny issues such as the appointment of supreme court judges and whether the court would ever decline to enforce acts of parliament. And Lord Mance gave a similar interview about the move from the House of Lords. And there is, of course, this blog with its serious and diverse discussion of the court, its decisions and processes.
The old arrangements in the House of Lords simply had to end: how could one of the most revered supreme courts in the world sensibly continue to operate from a corridor in parliament and be a ringfenced adjunct of it? Of course creating a new supreme court with essentially the same jurisdiction as the judicial committee of the House of Lords did mean that it would very much be business as usual.
That said, there have already been some subtle but important differences since the Supreme Court opened. Cameras are now permitted throughout the proceedings. This has not radically altered public perception of the court, since heavy legal argument rarely makes for good television. But it is symbolic of a desire to be more open and transparent; accompanied, for example, by official press releases from the court explaining difficult judgments and more court documents being made available on its website. And the supreme court appears to be more willing to sit as an enlarged panel of seven or nine justices to decide the most important cases. That also helps to enhance the court’s reputation in finely balanced cases: a five-four split decision is obviously preferable to a three-two one in a tough case.
The court has also been more a little more willing to give composite judgments: where the justices contribute to a single or majority opinion, rather than each giving differing reasons which may later breed uncertainty. It has also made bold and controversial decisions in difficult cases during its first few months: deciding that a Jewish school’s matrilineal admission requirements constituted racial discrimination and declining to follow the European Court of Human Rights in relation to criminal convictions based on absent witnesses, for example. I am only speculating, but I also wonder whether some of the symbolic changes that accompanied the creation of the new court may also result in subtle shifts in the justices’ perceptions of their own roles – and that might become very important in future cases that test the outer limits of our constitution.
And the success of the court cannot be measured in column inches alone: sadly newsworthiness rarely correlates to the amount of news coverage. If the debate to date has tended overly to focus on the new court’s carpet design, the media is surely to blame for that not the court or its constitutional arrangements.
So the overall verdict: a quiet but resounding success in my view. A sort of British velvet revolution.
This post originally appeared on the Guardian.co.uk, Comment is Free and is reproduced with permission and thanks.